What Is Protected Free Speech (and What Is Not)?
Let’s talk about freedom of speech: after all, it’s our constitutional right to say what we want, but since the Constitution places few restrictions on what we can say, people are constantly saying inaccurate things, including about the First Amendment. Let’s clear some of this up, since we’re allowed to, you know.
What is the First Amendment and what does it protect?
First, here is what the First Amendment to the Constitution of the United States of America says: “Congress shall make no laws concerning the establishment of a religion or prohibiting its free exercise; or restriction of freedom of speech or the press; or the right of the people to peacefully assemble and petition the government for redress.”
Cool, what does it all mean ? Clay Calvert, professor at the University of Florida, explained this in a chat with Lifehacker, explaining that while most of us are familiar with our right to choose our own religion or the right of the press to report freely on current events, the right to peacefully assemble or complain to the government is often is overlooked.
Regarding the wording of the First Amendment, he added: “Congress does not mean only Congress. The Supreme Court told us that this includes any local, state or federal entity or official.” Thus, no government can make a law that restricts free speech, but – and this is the main thing – the First Amendment protects us only from censorship by government agencies or officials.
Which speech is specifically protected?
You can worship how you want, write what you want, and say what you want. The government cannot punish or censor you. If you are a parent who wants to have a little scene at a school board meeting, your right to petition for damages is covered. If you are a professional footballer who wants to kneel in protest against police brutality and systemic racism, this is considered symbolic and you can do it. If you’re a smartphone owner and want to write a few tweets about how shitty people on one side of the aisle or the other, go ahead – even when you directly insult government officials, they can’t punish you.
In 1989, the Supreme Court even held that burning the American flag was a constitutional right, five years after a man named Gregory Lee Johnson did just that during the 1984 Republican National Convention. He was convicted of desecrating a revered object in violation of the Texas Penal Code, but when his case went to the Supreme Court a few years later, the decision was in his favor, not in Texas.
When is speech not protected?
So, to be clear, there is nothing the government can do to stop you from saying whatever you want, but private companies can. The government couldn’t do anything about Colin Kaepernick when he bent the knee, but the National Football League could. Kaepernick was not officially penalized by the NFL at first, even when then-President Donald Trump called for the organization to penalize him and other protesting players, but it is widely believed that he was blacklisted for protesting the anthem and he has since filed a lawsuit. settled the grievance, claiming that the teams conspired to subsequently keep him out of the league. In 2018, the league’s owners ruled that players could no longer kneel during the anthem.
The NFL is not the government. He can create such rules. Any private company can intervene and set rules about what speech is allowed and prohibited when using its products or services, performing publicly or otherwise entering into a contractual relationship with it. You know where this is going.
“The First Amendment to the US Constitution only protects us from censorship by government agencies and officials. Most people do not realize or understand this key fact. Twitter is a private organization; it’s not a government agency,” Calvert said. “Therefore, Twitter is not subject to the First Amendment when it decides to deplatform individuals or remove tweets that violate its terms of use or terms of service. It’s actually much more of a contractual matter: if a person registers to join Twitter, they must comply with the terms of service or terms of use specified by Twitter. If they violate them, then Twitter can delete them or remove the tweet, in which case there is no First Amendment issue or violation of any kind. I think that’s really the biggest misconception people have, that individuals can be governed by the First Amendment.”
There are a few things that are not protected when it comes to government: child pornography, for example, is not protected by the First Amendment, nor is speech, which is not an integral part of criminal behavior. Direct threats are not protected. Obscenity is also not protected, but there are a number of other modifications that allow you to continue to make content like, say, nude art photography or pornography. Calvert noted that while obscene speech must be defined as clearly offensive in order not to be protected, as long as it can be shown to have literary, artistic, political, or scientific value, that is fine. Besides, it’s all based on the standards of today’s society, he said, and definitions of obscenity are constantly evolving.
Finally, note that while you can say whatever you want and the government can’t stop you, people can also react as they see fit. If you say something offensive to a relative, that person may decide not to talk to you without violating your rights. If you publicly vilify your company, your boss may fire you. Your First Amendment rights do not protect you from any personal consequences arising from exercising them.
Why is it important?
The first amendment is extremely important. Calvert pointed to other countries, such as Russia or China, that limit people’s ability to criticize the government. In other countries this can have serious repercussions, but here in America you can post nasty memes about Republican Senator Ted Cruz or Democratic President Joe Biden all day long, and as long as you don’t directly threaten them, you’re allowed to do so. . Trump, also a Republican, is out of office right now, but if you post memes about him, he might not see them, as he was banned from Twitter and most social media in 2021, which, again, is not a violation of free speech as- anything.
However, judging by the way freedom of speech is discussed, you may not realize that deplatforming the then president was not an attack on the First Amendment at all.
Billionaire Elon Musk recently acquired a 9.2% stake in Twitter and then offered to buy it earlier this week, writing in a statement : “I invested in Twitter because I believe in its potential to become a platform for free speech worldwide, and I believe that freedom of speech is a public imperative for a functioning democracy. However, after investing my funds, I now realize that the company will neither prosper nor serve this public imperative in its current form. Twitter needs to be turned into a private company.”
The free speech debate will continue to rage, despite the fact that the First Amendment has been pretty clear on what it includes since 1971. Of course, you can participate in the debate, but it is better to do it armed with facts. and knowing that, again, private companies are not governed by the First Amendment.